IMAGE  EVALUATION 
TEST  TARGET  (MT-S) 


1.0 


I.I 


11.25 


If^  IM  IIM 


2.2 


1.4 


1.6 


Photographic 

Sciences 
Corporation 


23  WEST  MAIN  STREET 

WEBSTER, NY.  )4580 

(716)  S72-4S03 


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CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microrsproductions  /  Institut  Canadian  de  microreproductions  historiques 


Technical  and  Bibliographic  Notat/IMotas  tachniquM  et  bibliographi^fuM 


The  Institute  ha«  attempted  to  obtain  the  best 
original  copy  available  for  filming.  Features  of  this 
copy  which  may  be  bibiiograpi.ically  unique, 
which  may  alter  any  of  the  images  in  the 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checked  below. 


D 


Coloured  covers/ 
Couverture  de  couleur 


I      I    Covers  damaged/ 


Couverture  endommagie 

Covers  restored  and/or  laminated/ 
Couverture  restaurie  et/ou  pelliculAe 


□    Cover  title  missing/ 
Le  titre  de  couverture  manque 

CI    Coloured  maps/ 
]    Cartes  gioaraohii 


Cartes  gtegraphiques  en  couleur 

Coloured  ink  (i.e.  other  than  blue  or  black)/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noira) 

Coloured  plates  and/or  illustrations/ 
Planches  et/ou  iilustrationa  en  couleur 

Bound  with  other  material/ 
ReliA  avec  d'autres  documents 


D 


D 


Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin/ 

La  r«  liure  serrie  peut  causer  de  I'ombre  ou  de  la 
distoraion  l«  long  de  la  marge  intirieura 

Blank  leaves  added  during  restoration  ma\ 
appear  within  the  text.  Whenever  possible,  these 
hive  been  omitted  from  filming/ 
II  se  peut  que  certaines  pages  blanches  ajouties 
lors  dune  restauration  apparaissent  dans  le  texte, 
mais,  lorsque  cela  itait  possible,  ces  pages  n'ont 
pas  iti  fiimies. 


L'Institut  a  microfilm*  la  meilleur  axemplaire 
qu'il  lui  a  iti  possible  de  se  procurer.  Les  details 
de  cet  oxemplaire  qui  sont  peut-dtre  uniques  du 
point  de  vue  bibliographrque,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  axiger  una 
modification  dana  la  mithode  normale  da  filmbge 
sont  indiqute  ci-dessous. 


D 

D 
D 
D 
D 
D 
D 
D 
D 
D 


Coloured  pages/ 
Pages  de  couleur 

Pages  damaged/ 
Pages  endommeg^es 

Pages  restored  and/or  laminated/ 
Pages  restaur«es  et/ou  pelliculAes 

Pages  discoloured,  vtained  or  foxed/ 
Pages  d«color6es,  tachetAes  ou  piques 

Pages  detached/ 
Pages  ditachies 

Showthrough/ 
Transparence 

Quality  of  print  varies/ 
Quality  inigale  de  {'impression 

Includes  supplementary  material/ 
Comprend  du  materiel  suppiimentaire 

Only  edition  available/ 
Seule  Edition  disponible 

Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  host  possible  image/ 
Les  pages  totalement  ou  partiellement 
obscurcies  par  un  feuillet  d'errata,  une  pelur«, 
etc..  ont  M  filmies  d  nouveau  de  facon  d 
obtenir  la  meilleure  image  possible. 


Additional  comments:/ 
Commentaires  supplAmentaires: 


Pages  14-15  are  missing.  This  copy  is  a  photcrepi-oduction. 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 
Ce  document  6«t  film*  au  taux  de  reduction  indiqu*  ci-dessous. 
10X  14X  1£X  22X 


26X 


12X 


30X 


16X 


7 

20X 


24X 


28X 


32X 


e 

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8  du 
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r  una 
Imbge 


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o 


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32X 


Tha  copy  filmad  hara  haa  baan  raproducad  thanka 
to  tha  ganaroaity  of: 

Law  Library 
York  University 
Toronto 

Tha  imagaa  appaaring  hara  ara  tha  boat  quality 
poaaibia  conaidaring  tha  condition  and  iagibility 
of  tha  original  copy  and  in  kaoping  with  th« 
fiiming  contract  spacificationa. 


Originat  copiaa  in  printad  papor  covara  ara  filmad 
baginning  with  tha  front  covar  and  anding  on 
tha  laat  paga  with  a  printad  or  illuatratad  impraa- 
•ion,  or  tha  back  covar  whan  appropriata.  Ail 
othar  original  copiaa  ira  filmad  baginning  en  tha 
firat  paga  with  a  printvd  or  illuatratad  impraa- 
•ion,  and  anding  on  tha  laat  paga  with  a  printad 
or  iliustratad  impraaaion. 


Tha  laat  racordad  frama  on  aach  microficha 
shall  contain  tha  symbol  —^>(  moaning  "COiM- 
TINUED").  or  tha  aymboi  V  (moaning  "END"), 
whichavar  appliaa. 

Maps,  platas,  charts,  ate,  may  ba  fiimad  at 
diffarant  raduction  ratioa.  Thoao  too  larga  to  be 
antiraly  inciudad  in  ona  axposura  ara  filmad 
baginning  in  tha  uppar  laft  hand  cornar,  iaft  to 
right  and  top  to  bottom,  ea  many  fiamas  aa 
raquirad.  Tha  following  diagrama  illuatrata  tha 
mathod: 


1  2  3 


L'axampiaira  film*  fut  raproduit  grica  i  la 
gAniroaitt  da: 

Law  Library 
York  University 
Toronto 

Laa  imagaa  suivantaa  ont  tt4  raproduitas  avac  la 
plus  grand  soin,  compta  tanu  da  la  condition  at 
da  la  nattat«  da  l'axampiaira  film*,  at  an 
conformity  avac  laa  conditi^ona  du  contrat  da 
filmaga. 

Laa  tfxampiairaa  originaux  dont  la  eouvartura  an 
papiar  aat  imprim«a  aont  filmte  an  commandant 
par  la  pramiar  plat  at  an  tarminant  soit  par  la 
darniira  paga  qui  comporto  una  amprainta 
d'impraaaion  ou  d'iiiuatration,  soit  par  la  sacond 
plat,  salon  la  caa.  Toua  laa  autraa  axamplairaa 
originaux  aont  filmte  an  commandant  par  la 
pramlAra  paga  qui  comporto  una  amprainta 
d'impraaaion  ou  d'iiiuatration  at  an  tarminant  par 
la  darnlAra  paga  qui  comporto  una  talla 
amprainta. 

Un  daa  symboiaa  auivants  apparaltra  sur  la 
d'irniAra  imaga  da  chaqua  microficha,  salon  la 
caa:  la  symbols  — ^  signifia  "A  SUIVRE",  la 
symboia  y  signifia  "FIN". 

Laa  cartaa.  planchaa,  tablaaux,  ate,  pauvant  dtra 
filmte  A  daa  taux  da  reduction  diffirants. 
Lorsqua  la  dc^umant  ast  trop  grand  pour  Atra 
raproduit  an  un  saul  clich«,  il  eat  film*  A  partir 
do  I'anglo  sup«riaur  gaucha,  da  gauche  A  droite, 
et  do  haut  en  baa,  9n  prenant  le  nombre 
d'imagea  n^cassaire.  Las  diagrammtM  suivants 
illustrent  la  m^thode. 


1 

2 

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Gibson  Bro^,,  Printers  and  Bookbinders. 
,         1888. 


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,        WASHrNoroN,  D.  0.,  January  14,  1888. 
IIoii.  Thomas  F.  Bayard, 

Secretary  of  State. 

.-.owa,  ,;K  £s^f -jr 


'l'"'  I.  have   boon  «J^^  !J1^  ^"'T""'''°  """"^""''^'^ 

"  I>o,.s  ..outing  .„' ir. ;  Sea     Z;  "  l' "jr,  T  "' 
notated   by  the  SfnfA  Ho      .    ^" -^  ^''nuies,    compiled  nnd  un- 

-on  J'^^::s:zrz:z2'''  ^-^'^^  --  - 

ll>e  result  of  my  exuminutioii  I  be-  i.e8Dcctf..IW   f .      i     -. 
to  your  considei'ufio..   wIM.  ft     i     ''''«=/ ^'^P^^"'»li.V  to  submit 

"  i".vo  been  do rivo/ft.ontRl"!"'''  'V™'<=''^  "'Ij^ont  thereto 
"  to  t«.e  the  history  of  temi.,Hn,  '"'TT^'  thoretoro, 
"  the  Russian  possesLnl  In Vi  .  °^  "'"  ^""'^^  States  to 
;;  Ah.slca  to  the'STs  „  e"s  i  r  807^'  "^^X^"" ■'"''''''"  "^ 
«»<!  exfacts  tend  to  explain  that  reLionl"  ""°  P"P°'' 

"•vo  powers,  and  the  locSit;    '"v^^.  ttTi:-  ""*  T^'"'- 

3.  The  adjustment  <if  ti!ese  ollil,    «»»'»""»»  "-"fo-rod. 

1821  and  1825.  '  "^^  "'"  «0"vontiou8  of 


'■»'\'- 


3.  As  to  tho  renewal  of  the  4th  article  of  the  convention  of 

1824. 

4.  The  effect  of  tho  conditions  of  tho  7th  section  of  tlio 
treaty  of  1825  between  Great  Britain  and  RusBia. 

5.  The  position  of  tho  Treasury  Department  in  1872  in 
reference  to  tho  jurisdiction  of  the  United  States  over^tlio 
waters  of  Ahvska  Territory,  and— 

6.  As  to  tho  right  of  British  subjects  to  the  free  navigation 
of  the  Yukon  river  in  Alaska  Territory. 


b'!>\    ■  :^ 


I. — Thk  Contention. 

Whatever  may  have  been  the  contention  or  claims  of  tho 
United  States  and  Great  Britain  prior  to  the  conventions  of 
1824  and  1825  with  Russia,  in  reference  to  thoir  respective 
riglits  to    frequent  the  northwest  coast  of    America,  those 
treaties  adjusted  and  settled  them  ;  and  it  is  scarcely  worth 
while  now  to  recur  to  the  antecedent  correspondence,  which  is 
fully  set  forth  in  the  pamphlet,  in  order  to  learn  the  preciso 
object  of  this  Government  at  that  time,  but  rather  content 
ourselves  with  ascertaining  wl>at  it  actually  secured.     This,  1 
presume,  will   be  attained  by  a  careful  examination  of  ilio 
treaties  themselves— taken  as  entireties,  with  "  the  restrictions 
'•  and  conditions  "  that  define  and  control  their  general  terms. 
Before  referring  to  the  conventions,  I  beg  to  allude  to  tho 
incidents  which  produced  them. 

I  need  not  remind  you  that  the  Imperial  Ukase  of  1709 
conferred  upon  tlio  "Russian  American  Company"  exclnsivo 
jurisdiction  of  all  the  Russian  Possessions  in  North  America, 
from  tho  extreme  north  to  the  55th  parallel  of  north  latitude 
on  tho  coast  of  the  Pacific  ocean  ;  and  on  the  west  coast  to 
the  border  of  Japan.  ' 

This  grant  was  followed  by  occupancy,  and  no  objection 
was  interposed  by  the  United  States,  Great  Britain,  or  any 

other  power. 

In  1821,  a  new  charter  was  issued,  by  wliich  tho  jurisdiction 


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of  the  company  was  extended  four  degrees  further  south,  to 
latitude  51°.  This  was  in  conformity  to  the  bccond  article  of 
the  original  charter,  which  directed  the  company  "  to  make 
"  new  discoveries,  not  only  north  of  the  55th  degree  of  north 
"  latitude,  hut  further  to  the  Routh,  and  to  occupy  the  new 
«  lands  discovered,  aa  Hussian  possessions,  pccording  to  pro- 
"  scrihed  rules,  if  they  have  not  been  previously  occupied  by 
"  any  other  nation,  or  been  dependent  on  another  nation." 

In  the  meantime,  foreign  traders,  by  the  sale  of  spirituous 
liquors  and  firearms  to  the  natives  of  the  country,  in  exchange 
for  furs,  had  come  in  conflict  with  the  Russian-American  Com- 
pany, not  only  interfering  with  its  business  but  demoralizing 
the  inhabitants. 

To  remedy  this,  the  Ordinance  of  Septem'^cr  16,  1821,  was 
issued  by  the  Emperor  Alexander,  defining  the  extent  of  his 
jurisdiction  in  America,  and  forbidding  foreign  vessels  from 
approaching  the  coast  or  islands  north  of  51°  north  latitude,  or 
"  to  within  a  distance  of  less  than  orie  hundred  Italian  miles." 

To  this  extension  of  jurisdiction  Mr.  Adams  eiitercd  a  pro- 
test. The  tenor  of  that  instrument,  while  asserting  our  right  to 
navigate  the  high  seas,  does  not  repel  the  right  asserted  by 
llnssia,  except  as  to  wiuit  he  terms  "  the  assertioii  of  a  new 
pretension,"  viz.,  the  extension  of  Russian  jurisdiction  to  the 
51st  parallel  of  north  latitude,  and  the  prohibition  to  the  ves- 
sels of  other  nations  to  approach  within  one  hundred  Italian 
miles  of  the  coast.  And,  to  the  suggestion  of  Mr.  Poletica, 
that  "  the  extent  of  sea,  of  which  these  possessions  form  the 
"limits,  comprehends  all  the  conditions  which  are  ordinarily 
"  attached  to  shut  seas  (mers  fermc^es).''  Mr.  Adams  replied  : 
"  It  may  sufKce  to  say  that  the  distance  from  shore  to  shore 
,"  on  this  sea,  in  latitude  51®  north,  is  not  less  than  ninety  do- 
"  grees  of  longitude,  or  four  thousand  miles." 

In  his  instructions  to  Mr.  Middleton,  Mr.  Adams  said : 
?'  AVith  regard  to  the  territorial  claim,  separate  from  the  right 
"  of  tralKc  v/ith  the  natives,  and  from  any  colonial  exclusions, 
**  we  are  willing  to  agree  to  the  boundary  lino  within  which 


^M;.: 


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'i-A," 


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r.V.'  ■ 


6 

"  tho  Einporor  Pnul  had  granted  exclusive  privileges  to  tiio 
♦'■  Riissid  •  Vinoriean  Company  ;  that  ia  to  say,  latitude  55*." 
In  Ilia  despatch  to  Mr.  Kubii,  of  Mio  samo  date  (July  22, 1823), 
Mr.  Adams  said  :     , 

"  The  riglit  of  carrying  on  trade  with  tho  natives  through- 
"  out  tlie  nortliwost  const  they  (tho  Unitod  States)  cannot  lo- 
"  nounce.  Witii  tho  Kussian  settlements  at  Kodiak,  o"at  Kow 
"  Archangel,  they  may  fairly  claim  tho  advantage  of  a  free 
"  trado,  having  so  long  enjoyed  it  unmolested,  (vnd  because  it 
"  has  been,  and  would  continue  to  bo,  fts  advantageouf)  at  least' 
"  to  those  settiomenta  us  to  them.  ;  But  they  will  not  contest 
"  tho  right  of  Russia  *o  prohibit  the  traffic,  aa  strictly  confined 
"  to  tho  llussian  settlement  itself,  and  not  extenuing  to  tho 
'*  original  natives  of  tho  coast." 

This,  tlicn,  was  the  attitude  of  the  United  Stater  ;^rior  to  the 
treaty  of  1S24,  and  tlicso  wore  tho  questions  to  bo  adjusted  17 
the  proposed  treaty. 

It  will  be  remembered  that  no  protest  or  objection  had  been 
made  to  the  claim  of  oxclusivw  jurisdiction  by  Hussia  to  tho 
55th  parallel  of  north  latitude ;  and,  as  wo  have  just  seen,  tho  )^i 
United  States  admitted  tho  territorial  claim  to  that  extent,  and  *' 
tho  principal  object  of  the  negotiation  was  to  iix  by  treaty  a 
definite  boundary  lino  and  t^ettlo  tho  controversy  in  refcroiKio 
to  trading  with  tho  natives  inhabiting  tho  coast  of  tiio  Patulic 
ocean. 

Now,  it  will  bo  observed,  tluit  this  contention  related  ex- 
clusively to  the  coast  of  tlio  Korth  Pacific  ocean  proper,  for 
there  is  no  reference  to  any  other  region  of  country,  or  coast, 
or  sen.  Tho  debatable  ground  was  tiio  coast  between  55°  and  . 
51"  north  latitude,  where,  in  the  language  of  Mr.  Adams, 
"  tho  sea  is  four  thousand  miles  from  shore  to  shore."  Kodiak 
and  New  Archunglo  are  mentioned  as  points  at  which  tho  Unitct' 
States  "  miglit  fairly  claim  tlic  advantage  of  a  free  trado ;" 
and  while  tiio  Ukuso  embraced  tho  Aleutian  and  Kurilc  ishuidti 
there  is  no  reforonco  to  them  in  the  protest,  nor  in  tho  correu- 
pondenco  or  negotiation,  nor  in  tho  treaty.  *' 


■rrjf: 


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If 

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Tlio  explanation  of  this  is,  tliat  there  had  heen  no  conflict 
Itclweei)  American  or  English  traders  and  tlio  Rnssian-Anieri- 
can  Company. except  on  this  particilar  coast.     The  exclusive 
dominion  of  Kussia  over  the  Aleutian  and  Knrilo  islands  was 
not  disputed,  and  her  territorial  right  on  the  coast  of  the  Nortli 
Pacific  to  the  55th  parallel  was  tacitly,  at  lest,  assented  to 
\,y  all  the  powers,  the  United  States  included. 
It  seems  clear  to  me,  that  if  the  protest  and   negotiations 
^related  to  the  southern  helt  of  Russian  territory,  both  land  and 
[[^wftter,  and  that  the  qoptentiou.vi'as  not  confined  to  the  coast  of 
the  Nortli'Paeific  ocean  proper'  there  would  have  been  some 
reference  made  to  the  Alaska  peninsula  and   the  group  of 
Aleutian  islands  which,  in  their  prolongation,  extend  far  south 
of  55°  north  latitude.     Yet,  we  look  in  vain  for  any  intimation 
ui.ywiicro  questioning  Russia's  title  to  tliat  peninsula  and  group 
..f  islands  which  she  had  held  in  undisputed  possession  from 
Ihc  date  of  their  discovery ;  and   when,  in   his  instructions  to 
Mr.  Middleton,  Mr.  Adams  stated:  "  We  are  willing  to  agree 
"to  the   boundary   line. within    which,  the   Emperor   Paul 
^,"  had'  gmnted  exclusive Vprivilegos 'to.;  the  Russian-American 
"Company;  that  is  to  say,  latitude  65,r»  he  had  reference  to  • 
a  locality  in  relation  to  whose  title  and  boundary  there  was 
n  .lispute ;  or,  as  ho  stated  the  case  to  Mr.  Poletioa,  ^<  that,  in 
I'  assuhiing  now  the  latitude  of  51°  a  new  pretension  is  as- 
"  sorted."     And   it  was  to  this  new  pretension  that  he  en- 
tered his  protest ;  yet,  at  the  same  time,  and  from  the  date  of 
discovery  until  the  cession  of  Alaska,  tlicre  was  a  large  extent 
of  territory,  botl^  land  and  water,  comprising  a  part  of  Russian 
America,  extending  south  of  the  54th  parallel,  that  was  in  the 
tindisputed  possession  of  Russia,  and  which  the  United  States 
in  ISGT'purchased  from  Russia  and  paid  for. 

Not  only  this,  but,  as  we  shall  see  further  on,  by  the  treaty 
which  followed  (1824),  Russia  stipulated  that  she  would  form 
no  establishments  on  the  northwest  coast  south  of  54°  40'  nortli 
latitude.  And  yet  heV  title  to  Alaska  peninsula  and  the  Aleu- 
I'fiii  islands,  extending  hundreds  of  miles  south  of  tliat  parallel 
wore,  and  always  had  boon,  undisputed.  ' 


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;  /^*VV!,.,' 


8 

I  maintain,  therefore,  that  the  contention  had  reference  to 
the  coast  of  the  North  Pacific  ocean  proper,  and  had  no  nioru 
relation  to  Bohring  Sea,  or  its  islands,  than  it  had  to  tlio  Alen- 
tian  gronp,  or  the  coast  of  Asia. 

I  cite  those  facts  in  order  that  we  may  understand  precisely 
what  the  questions  were  which  the  f  raraers  of  the  treaties  had 
before  them  for  adjustment. 

'     il.— Thb  Tbbaties. 

■^  ;  The  first  article  of  the  treaty  between  thieiUnited  States  and 

■Russia  (1824)  provides ^■^;>:v(;'^PlS■fe^;^^ii^^^^^^  ,>: 

"  Article  I.  It  is  agreed  that,  in  any  part  of  the  grcjit 
"  ocean,  commonly  called  the  Pacific  ocean  or  South  Sea,  tlio 
"  respective  citizens  or  subjects  of  the  high  coritructing  powers 
"  shall  be  neitlier  disturbed  nor  restrained,  either  in  navigatiun 
"  or  in  fishing,  or  in  the  power  of  reporting  to  the  coasts,  upon 
**  points  which  may  not  already  have  been  occupied,  for  the 
"  purpose  of  trading  with  the  natives,  saving  always  the  re- 
"  strictions  and  conditions  determined  by  the  following  ur- 
"  tides."  ,  >.  •  ■ 


The  "  restrictions"  and  conditions  referred  to  in  the  forego- 
ing article  are: 

1 .  Citizens  of  the  United  States  siiall  not  resort  to  any 
point  where  there  is  a  Russian  establishment  without  permis- 
sion of  the  Governor  or  commander  of  such  establishment 
{Article  2). 

.  2.  Citizens  of  the  United  States  are  not  to  form  any  estul)- 
lishments  upon  the  nortii west  coast  of  America,  nor  in  tho 
islands  adjacent,  to  the  north  of  54°  4.0'  north  latitude  (Arti- 
cle'S).  ,  ;      .  ;   .   :   .;   :.!V   .       .    •     -     •  ■•     .^ 

3.  For  the  term  of  ten  years  from  the  signature  of  tiie  con- 
vention, the  ships  of  botli  parties  are  permitted  to  frequent 
tiie  interior  seas,  gulfs,  harbors,  and  creeks  upon  the  coast 
mentioned  in  the  preceding  article  for  the  purpose  of  fishing 
and  trading  witli  tlio  natives  of  the  country  {Article  4). 


11 


9 


4.  Spirituous  liquors,  firo-arms;  anil  munitions  of  war  aro  ex- 
cepted from  this  coiiiuierce  (Article  5). 

The  first  article  of  the  convention  between  Great  Britain 
and  Eussia  (1826)  provides : 


I- 


Si: 


"Article  I,  It  is  agreed  that  tlie  resppctive  subjects  of  the 
"  higli  contracting  parties  shall  not  be  troubled  or  molested,  in 
"  my  part  of  the  ocean  commonly  called  the  Pacific  ocean,  either 
«  in  navigating  the  same,  in  fishing  therein,  or  .in  landing  at 
«*  such  parts  of  the  coast  as  shall  not  have  been  already  occu- 
rh."  \^}^^»  "'  order  to  trade;  with  the  natives,  under  the  restric- 
i%  lotions  and  conditions  specified  in  the  following  articles  " 

The  restrictions  and  conditions  referred  to  in  this  article 
aro  as  follows: 

1.  British  subjects  must  not  land  at  any  place  where  there 
is  A  Russian  establishment  without  })ermi88ion  of  the  Russian 
Governor  or  Commandant  {Article  2). 

2.  No  establishments  are  to  be  formed  by  either  party  with- 
in the  limits  assigned  by  the  3d  and  4tli  articles  to  the  pos- 
session of  the  others  (^?'^2C^e  5)4,  .^r^^f.  .,,•!; 

3.  English. vessels,  or  thpse  belonging 'to  English  subjects, 
may  frequent  « the  inland  seas,  gulfs,  havens  and  creeks  on 
*•  the  coast  mentioned  in  article  3,  for  the  purpose  of  fishing 
"  and  of  trading  with  the  natives"  {Article  1).      ■ 

4.  The  foregoing  liberty  of  commerce  shall  not  extend  to 
trade  in  fire-arms  or  spirituous  liquors  witli  the  natives  of  the 
coinitry  (Article  9). 

:  While  it  is  true  that  by  the  first  article  of  each  of  these 
treaties,  there  is  .  stipulation  tljat  the  subjects  and  citizens  of 
the  contracting  parties  are  free  to  navigate  the  Pacific  ocean, 
fish  in  its  waters,  land  at  such  points  on  its  coast  as  aro  not 
occupied,  in  order  to  trade  witli  t.he  natives,  yet  this  stipula- 
tion rests  upon  express  and  distinct  conditions  whicli  restrict 
its  operation  to  the  limits  winch  I  shall  endeavor  to  point  out. 
These  "  restrictions  And  conditions  "  aro  intended  to  ppeciti- 
willy  define  and  qualify  the  meaning  of  the  instrument  taken 


if*;' 


iA''>y^:V  r  .,'1 


•»;. 


'm 


'J-.f'iJi  r 


-'.'Si 


fiW^.: 


■i^kf^' 


wM 


10 


;>.■■?■; 


in  its  entirety;  for  by  the  very  terms  of  the  stipuliition,  and 
couplod  vvitli  it,  18  the  declaration  that  the  acts  porniitted  hy 
it  are  to  be  performed  "  under  the  restrictions  and  conditions 
"  of  the  following  articles." 

Tlie  restricting  clause  of  the  treaty  of  1824,  between  Russia 
and  the  United  States,  is  substantially  equivalent,  and  is  aa 
follows :  "  Saving  always  the  restrictions  and  conditions  de- 
"  termined  by  the  following  articles." 

Now,  if  the  succeeding  articles  which  contain  the  "  rcstric- 
"  tions  and  conditions"  prescribe  the  method  by  which  the 
?l acts  permitted  , by  the  first  article  -are  to  lie  performed ;  or 
'  confine  them  to  a  particular  locality  or  region  of  country  ;  or 
limit  their  performance  to  a  specified  period  of  time ;  it  must 
be  conceded  that  tiio  particular  method,  locality,  and  period 
tlms  designated  were  intended  by  the  stipulation  in  the  first 
article.  To  adopt  a  different  rule  of  interpretation  would  con- 
vert a  mortgage  into  a  deed,  apd  a  penal  bond  into  a  contra(*t 
to  pay  the  penalty,  without  regard  to  forfeiture  or  perform- 
ance. 

Take  for  illustration  tlie  5th  article  of  the  treaty  (1825).  Thia 
is  one  of  the  restricting  articles  referred  to  in  the  first  article ; 
it  prohibits  the  sale  of  fire-arms  and  spirituoup  liquors  to  the 
natives  of  the  country.  Would  it  be  claimed,  tliat  under  tho 
stipulation  of  the  Ist  article  wliich  permits  trading  with  tlio 
natives  in  general  terms,  that  such  commerce  is  sanctioned  by 
tho  treaty  ?  . 

Again,  by  tlie  first  article  our  citizens  are  to  be  "  neither 
'  "  disturbed  nor  restrained,  either  in  navigation  or  in  fishing,  nr 
"  in  the  power  of  resorting  to  tlio  coasts,  upon  points  wliicli 
"  may  not  already  have  been  occupied,  for  tiie  purpose  of 
"  trading  with  the  natives  ;"  but,  by  the  second  article  thoy 
are  not  permitted  "  to  resort  to  any  point  where  there  is  a  Eus- 
"  sian  establishment  without  the  permission  of  tlie  Governor 
"  or  Commander." 

So,  too,  in  regard  to  tlio  4th  article,  which  provides  :  '*  It  ia 
«  nevertheless  understood  that  during  a  term  of  ten  ycui*a, 


m 


I 


iiiiiiiiiniiiiaiMiiii 


11 


SA,' 


"  coimtiii<?  from  the  sii^aiatnre  of  the  present  convention,  tlio 
"  ships  of  both  powoi'B,  or  which  belon^r  to  tlioii-  citizens  or 
"  subjects  respectively,  may  reciprocally  frequent,  without  any 
«  liindrance  whatever,  the  interior  seas,  gu^fs,  harbors,  and 
"  creeks  upon  the  coast  mention^id  in  the  preceding  article, 
"  for  the  purpose  of  fishing  and  trading  with  the  natives  of 
"  the  country." 

Here  is  a  limitation  of  time,  and  the  period  vvitliin  which  tiio 
acts  stipulated  in  tiie  first  article  are  permitted  is  restricted  to 
"  a  term  of  ten  ycar8.V;i?ff^'f'>*itrM^?^^^^^ 
.,;?:  Under  tliis  construction  of  tiio;tmty,th^  conferred 

by  it,  in  reference  to  the  nbrtliWes't  •coast^^e^^^      in  April,' 1834," 
and  have  not  since  been  renewed  ;altIiougli  urgently  requested 
by  tliis  Governmunt,  it  was  peremptorily  refused  by  Russia. 

That  the  foregoing  is  the  proper  and  settled  construction  of 
ihe  treaty  I  sliall  endeavor  to  establish. 

Where  two  or  moi-e  appt;rently  conflicting  propositions  are 
contained  in  the  same  instrument,  they  should  he  construed  so 
as  to  give  effect,  if  possible,  to  all ;  if  this  is  not  possible,  then 
the  later  is  preferred  to  the  former,' as  the  final  conclusion  of 
the  maker  of  the  instrument  on  the  subject-matter  in  question. 
But  whore  the  former  proposition,  in  itself  refers  to  the 
later,  and  adopts  it,  in  tiiat  case,  the  later  becomes  a  part  of 
the  former  and  governs  it;  'thus  reconciling  the  apparent  con- 
l^ict  and  givino-  effect  to  both. 

Now,  the  apparent  conflict  between  the  first  and  fourth 
articles  of  the  Convention  of  18:^4,  arises  from  the  fact  that 
the  stipulations  of  the  former  are  substantially  repeated  in 
the  latter,  but,  by  the  latter,  the  operation  of  fiie  stipulation 
18  restricted  to  a  specific  period  of  duration.  The  first  article 
contains  a  oreneral  assertion  of  tlie  right  of  Russians  and 
Americans  to  do  certain  acts,  wliich  Mr.  Adams  claimed  were 
authorized  by  natural  law,  and  Mr.  Forsyth  by  the  law  of 
nations.  Admitting  that  to  be  true,  it  was  nevertheless  com- 
petcnt  for  the  United  States  to  restrict  or  surrender  them  upon 
such  considerations  as  soemcd  satisfactory  to  them. 


:'V„ 


'>5-: 


'.  ;  \f  ■'.    ■  ■■  - 


■Ik 


%V--.-':itiii3&*iyi^ai.aamm%i, 


. '-  ■^'^-'^'^-"•'■^fei^t'^^uiato^ . 


'KVf°Ti""  -'"'y-*^ 


12 


'  In  the  same  article  that  asserts  this  right,  and  coupled  with 
that  assertion,  there  is  a  proviso  or  stipulation  prescribing  tho 
manner  in  which  the  right  slmll  •  be  exercised ;  the  particulur 
acts  permitted  by  the  tirst  article  are  to  be  performed  "  under 
"  the  restrictions  and  conditions  of  the  following  articles,"  ono 
of  which,  the  4th  article,  restricts  that  performance  to  t\\^ 
period  of  ten  years  from  tho  signature  of  the  convention. 

By  this  construction,  we  reconcile  the  apparent  conflict  be- 
tween the  first  and  fourth  articles,  and  give  effect  to  both; 
^^^^^®  *  different  interpretation  would  destroy  tliem  both,  bo- 
p^^^^Ji^' cause,  if  tho  stipulations  of  the  first  are  not  limited  to  ten  years 
by  the  4th,  then  the  latter  is  surplusage  and  void  ;  while  tho 
former  being,  as  claimed,  but  the  assertion  of  a  natural  right 
confers  nothing,  restricts  nothiog,  and  is  without  force  or 
effect. 

Mr.  Dallas,  in  his  dispatch  to  Secretary  Forsyth,  August  IG, 
1837,  said:  "My  conviction,  however,  arising  from  the  lan- 
"  J?"ago  of  the  Rusbian  precautionary  record  or  protocol 
"  (which  Mr.  Middleton  rather  avoided  than  rejected)  is  that 
"  Count  Neselrode  will  deem  himself  apd  Mr.  Polotica  to  iiavo 
**  attained  by  this  fourth '  article,  through  the  use  of  other 
"  words,  the  substance  of , the  clause  to  which  Mr.  Middleton 
"  objected,  and  that  he  will  consider  both  Governments  to 
"  have  buried  all  controversy  aljout  the  rights  incident  to  tho 
"  prior  discovery  of  savage  and  unoccupied  lands,  and  to  have 
"  consented  that,  at  the  expiration  of  ten  years,  tlie  TInitcd 
"  States  sliould  be  esteemed  to  possess  in  full  domain  tho 
"  coast  and  islands  to  the  soutli,  and  Russia  the  coast  and 
"  islands  to  the  north,  of  54"  40'  north  latitude.  He  may  aslc, 
"  and  with  some  plausibility,  with  what  other  object  the  fourth 
"  article  was  framed.  It  uses  no  phraseology  tantamount  tO\ 
"  * estuMishments ^  or  'settlements'  or  *  points  already  occu- 
"  pied  ;'  but  p-Tiects  from  any  hindrance  for  ten  years  only 
"  tho  power  to  rn.quent  tlio  interior  seas,  gulfs,  .iiarboi's,  and 
"  creeks  upon  the  coast,  for  the  purpose  of  fisliing  and  trading 
"  with  the  natives,  a  power  already  duly  enunciated,  without 


r-m 


13 

"  limit  oftime^  for  both  countries  by  the  first  article ;  and,  if 
"  it  was  not  intended  rautually  to  yield  tiie  power  in  relation 
"  to  the  sections  divided  by  the  parallel  of  Ifititude  at  the  ex- 
"  piration  of  the  term,  why  disturb  the  opeifation  of  the  liret 
"  article  at  all? "  '  '      . 

In  the  case  of  the  American  brig  Zoriot,  which  sailed  from 
the  Sandwich  islands  Aug.  22,  1836,  bound  for  the  northwest 
coast  to  procure  provisions  and  Indians  for  hunting  sea  otter, 
and  anchored  in  Tuckessan  harbor,  latitude  54°  55',  at  which 
point  there  was  no  i  Kussian  settlement,  and  yroA  boarded  by 
'  the  oflScers  of  an  armed  brig  of  the  Russian  navy,  by  whom 
her  captain  was  ordered  to  leave  the  dominions  of  Russia,  and 
compelled  to  get  under  way  and  abandon  her  voyage ;  the 
United  States  protested  and  presented  a  claim  for  indemnity, 
which  was  peremptorily  denied  by  the  Russian  government,  on 
the  ground  that,  by  the  expiration  of  the  ton  years'  limit,  of 
the  operations  of  the  iirst  article,  as  expressed  in  article  four, 
the  right  of  the  citizens  of  the  United  States  to  frequent  the 
seas,  gulfs,  &c.,  north  of  64*  40'  had  cea'cd  to  exist. 
;  In  his  note  of  February  23, 1838,  Oount  Noselrode  informed 
■:^ Mr.  Dallas  that : '  'h^^^r-^'>im^^^;§M^i'^^^  ■'•■'■■        '  ' 

*;  i  "  It  is  true,  indeed,  that  the  first  article  of  the  convention  of 
"1824,  to  which  the  proprietors  of  the  Loriot  appeal,  se- 
"  cures  to  the  citizens  of  the  United  States  entire  liberty  of 
"  navigation  in  the  Pacific  ocean,  as  well  as  the  right  of  land- 
"  ing  without  disturbance  upon  all  points  on  the  northwest 
"  coast  of  America,  not  already  occupied,  and  to  trade  with 
"  the  natives.  But  this  liberty  of  navigation  is  subject  to 
"  certain  conditions  and  restrictions,  and  one  of  these  restric- 
"  tions  is  that  stipulated  by  the  fourth  article,  which  has 
"  specinlly  limited  to  the  period  of  ten  years  the  right  on  the 

.  "  part  of  the  citizens  of  the  United  States  to  frequent  without 
"  disturbance,  the  interior  seas,  the  gulfs,  harbors,  and  creeks, 
"  north  of  the  latitude  of  64  degrees  40  minutes.  Now  this 
"  period  had  expired  more  than  two  years  before  tlie  Loriot 
•'  anchored  in  the  harbor  of  Tuckessan." 

In  communicating  to  his  government  the  refusal  of  Russia 


IG 


(I 


'•VI  ;■ 


"  Other  party,  freoly  wliore  it  is  freely  granted  to  .^uch  otljor 
nation,  on  yiekUn<;  the  same  compensation,  when  the  grant 
"  is  conditional." 

Upon  this  state  of  facts,  the  writer  of  the  note  ahovo  roforroel 
to  conclndcs  that,  by  the  operation  of  the  section  jnst  rocitoil, 
the  renewal  by  England  and  Russia  of  their  treaty  of  1825 
revived  tlie  4th  article  of  the  treaty  of  1824  between  Rnsbia 
and  tho  United  States  ;  and,  therefore,  that  the  said  4th  article 

is  still  in  force.  /     •.■     v:.#|fi*^>!i»?;-^A'?^'>V-??f''^^^^^ 

^  ^  It  is  a  fact  worthy  of  notice  thttt,'frpra,  Jnly, (1835,  to  April, -^^ 
1838,  the  United  States  persistently  urged  the  renewal  of  tins  /". 
article,  and  that  the   Russian  ■  government  peremptorily  re- 

fused. 

I  do  not  forget  that  by  the  hypothesis  stated  \u  the  note  I 
am  considering,  the   Uth  article  of  the  treiity  of  I8i52  did 
not  take  effect  until  the  renewal  of  the  English  treaty  of  1825 
by  the  convention  of  1843,  and  after  the  refusal  of  the  Rus- 
sian Cabinet  to  renew  the  4th  article;  but  I  mention  the  fact 
of  refusal,  a.id  the  reasons  for  it  as  stated  by  Count  Nosel- 
rode,  in  order  to  rebut  the  presumption  that  the  inaperial  gov. 
ornment  esteompd  it  to  he  the  office  of  the  llth  article  to 
accomplish  by  indirection  or  implication  that  which  it  had  so 
persistently  refused  to  sanction. 

The  treaty  of  1843,  which  revived  the.  convention  of  1825, 

was  a  treaty  bctwee^i  Great  Britain  and  Russia;  the  United 

States  was  not  a  party  thereto,  and,  of  course,  could  not  bo 

bound  by  its  stipulations. 

The  stipulations  of  the  treaty  of  1825,  which  had  e.Kpirud 

and  were  revived  by  the  treaty  of  1843,  were :         • 

1.  The  privileges  enumerated  in  the  7th  article  in  reforonco 
to  the  frequenting  the  inland  seas,  gulfs,  havens,  ^c.-  mentioned 

in  article  three. 

2.  That  for  the  space  of  ten  years  the  port  of  Sitka  was  to 

be  open  to  British  commerce. 

Now,  it  will  be  observed  that  the  7th  article  of  the  British 
treaty  (1825)  and  the   4th  article  of  our  treaty  (1824)  aro 


''.u\A  ■:',■. 


iiv^ 


fi*i- 


i.7 

.iMular  in  tl.eir  terms ;  thoir  diffo.-onco  con.sists  in  tl,o  fact 
..,  by  t..o  i.l,  article,  tl.e  .tip..l,.tcd  privilogo.  extend  to  tl 
ai  enovtl>wc8tceast  of  the  Pucific ocean;  wlnle,  by  the  7.1 
kle,  British  enbjects  are  restricted  to  "  the  c^a.t  mentioned 
"  narticleS,"  wlm-.l,  is  the  coast  of  .hecontinent  border.ug  on  • 
,„e  Pacitic  ocean,  between  54"  40'  north  latitude  and  .U  ...tor- 
section  with  the  Hist  parallel  of  west  long.tndo ;  so   ha     he 
privileges  granted  to  Great  Britain  were  not  those  o  wl.ieh  the 
Umted  States  were  entitled,  and  the  renewal  of  the  treaty  of 

1835 
1824. 

If  wooonoeae  tnai  uioro.io"— "- =-      „  .",  o.  . 

tl^o  4th  article  at  all,  it  could  only  renew  to  the  Unitod  States 
the  same  privileges  that  it  restored  to  England  ;  winch,  as  we 
l,Hvo  scon,  refer  only  to  a  comparatively  snuvU  section  of  the 
eastern  coast  of  the  Pacific  ocean,  more  tlian  a  thousand  nn les 
remote  from  Behring  Sea.  Therefore,  the  question  as  to  the 
jurisdiction  of  the  United  States  over  «  our  part  of  Behring 
«  Sea,"  as  the  eastern  half  of  that  sea  is  described  by  Mr 

'  -  «  .    .       •       .1 ^«.«u1/>4-    iTT/M-iin    nor. 

Siunner 
bo 


rJ-tJ 


^ea,"  as  the  eastern  half  of  that  sea  is  described  by  Mr  :  ^^^• 
mner  in  the  speech  referred  to  in  the  pamphlet,  would  not  ,j^. 
affected  one  way 'or  the  othef>?,ji:;>|f|f^mS7|;A:^tVV;-./  J^^p^^^^ 

r  .  ■  ■.■^.i^-j-'-^vmm'^^^  ■■■■■■■■ 


..  i'5 


IV  •.' 


XV. Thb  Sbvkntii  Abtiole. 

.  TiiG  remaining  question  is  in  respectto  the  present  right  of 
British  subjects  to  frequent  the  inlana  seas,  gulfs,  havens,  and 
creeks  of  the  northwest  coast  by  virtue  of  the  provisions  of 
the  treaty  of  1826  between  England  and  Russia. 
1.,  The  7th  article  of  that  treaty  provides  : 

"It  is  also  understood  that  for  the  space  of  ten  ye'^^^f^"^  ' 
"the  siL'natureof  the  present  convention  the  vessels  of  the 
"  two  powers,  or  those  belonging  to  their  respective  subjects, 
*.  hall^nummlly  be  at  liberty  to  frequent,  without  any  hi«- 
•'  Irance  whatever,  all  the  inland  seas,  the  gulfs,  havens,  and 
/creeks  on  the  eo^st  mentioned  in  article  3^  for  the  purpose 
•'  of  tishing  and  of  trading  with  the  natives. 


„..\^r,r.- 


'■}■'  rMl 


...    r'  itrt 


18 

Tt  will  bo  obsorvod  tlmt  this  urtiolo  rostricts  the  opomtioii  of 
tho  first  ftrticlo  to  the  period  of  ten  yetirs,  pi-ooisoly  m  the  4th 
article  of  the  treaty  of  182i  restricts  the  iirst  article  of  that 
treaty. 

^y  tho  12tli  and  20th  articles  of  the  treaty  of  1843  between 
England  and  Russia,  the  treaty  of  1825  was  renewed  for  a 
period  of  ten  years,  '» and  further,  until  the  expiration  of 
"  twelve  months  after  either  of  the  high  contracting  parties 
"  shall  have  given  notice  to  the  other  of  its  intention  to  put 
"  an  end  thereto."    .     . 


■y^'^ 


•iih'K  U'*\i- 


.  V  =  W'''  ^^*^"'  ^y  *^®  convention;;  pf  January  - 12,  1859,  there  was 
fc  >^^v|tv^''  a  similar  renewal,  with  the  same  right  reserved  to  either  party, 
p     '     ;  ^f      to  put  an  end  to  the  treaty  after  twelve  mouths'  notice. 

In  1867,  the  territory  was  ceded  to  the  United  States. 

By  tlie  sixth  article  of  the  treaty  of  cession  it  is  declared : 

"Tlie  cession  of  territory  and  dominion  heroin  made  ia 
"  hereby  declared  to  be  free  and  unencumbered  by  any  rcsor- 
"  vations,  ^n'y/%d,v,  franchises,  grants  or  possessions,  by  any 
"  associated  companies,  whether  corporate  or  incorporate, 
"  Russian  or  any  other,  or  hy  any  other  partieSy  except  merely 
"  private  individual  property  holders.". ,,,,  ;.,..,. 

?f!'V^#^'J\.  ^'^®  question  now  arises :•/* Did   thd'stipulatione  of  the 
t '  ' ^ '  '"  revived  treaty  of  iG25  betwepn'  G^reat  Britain  and  Russia 

"  survive    tlie    transfer    of    the  territory   by  Russia  to  tho 
'*  United  States?" 

Russia,  having  parted  with  her  title  to  the  territory,  had 
deprived  herself  of  the  right  to  give  tlio  notice  required  by  tho 
renewal  treaty ;  and  the  United  States,  not  being  u  party  to 
the  treaty,  was  not  required  to  give  such  notice  ;  but  I  hui 
inclined  to  tlie  opinion  that  the  transfer  of  title  by  Russia 
constituted  a  notice  within  the  meaning  of  the  renewal  treaties; 
and,  if  so,  tha  privileges  conferred  on  British  subjects  by  tho 
treaty  of  1825  ceased  to  exist  at  the  expiration  of  twelve 
months  from  the  treaty  of  cession. 

1  am  the  more  inclined  to  this  view  for  the  reason  that  tho 


% 


I 


■"■■  'w:.-^!^^Lrsr'-r^'if^ff-?s-'^"T^y, 


19 


privileges  conferred  hy  tlio  treaty  were  rcciprocHlly  given  to 
tlio  huhjects  of  Russia  and  Groat  Britain.  It  was  a  joint  rijijht, 
common  to  tlio  subjects  of  botli  powers ;  and  when  Russia 
divested  herself  of  her  Mtle.  and  interest  in  tl\o  territory  in 
which  these  privilegee  were  to  be  exercised,  and  'it  became  im- 
possible for  her,  for  that  reason,  to  continue  to  discharge  her 
treaty  obligations,  it  is  difficult  to  see  how  England,  alone, 
could  maintain  the  integrity  of  the  treaty,  or  enforce  the  stip- 
ulations  against  a  power  who  was  not  a  party  to  the  treaty, 
and  who  had  assumed  no  liability  or  obligation  in  reference 
to  it.  And,  whether  the  termination  of  the  treaty  wore  brou»<it 
•bout  by  the  transfer  of 'the  territory  by  which  it  became  im-  ■ 
possible  for  Russia  to  continue  it,  or  by  means  of  a  formal 
notice  that  she  would  not  continue  it,  the  result  would  be  the 
snme. 

2.  The  sevcntjj  article  of  the  English  treaty  (1825)  not  only 
restrict!^  the  operation  of  the  first  article  to  the  space  of  ten 
years,  but  it  also  restricts  the  privileges  of  British  subjects  to 
the  section  of  coast  mentioned  in  article  three  (which  article  is 
omitted  from  the  paraphlot). 

Articles  3  and  4  define  the  boundary  lino  running  north  and 
•outh  between  the  British  and  RnsBinu  possessions.;,;^!..  , 

.'  " Commencing  fi'om  tlio  Bouthorninost  point  of  the  island  '. 
"  called  Prince  of  Wales  Island  "  (says  the  3d  article),  "  which 
"  j)oint  lies  in  the  parallel  of  54  degrees  40  minutes  north 
"latitude,  and  between  the  131st  and  the  133d  degree  of 
"  west  longitude  "  (meridian  of  Greenwich),  "  the  said  line 
"  shal!  ascend  to  the  north  along  the  channel  called  Portland 
"  channel,  as  far  as  the  point  of  the  continent  where  it  strikes 
"  tlie  56tli  degree  of  north  latitude  ;  from  this  last-mentioned 
"  point  the  Hue  of  demarcation  shall  follow  the  summit  of  the 
♦*  mountains  situated  parallel  to  the  coast  as  far  as  the  point  of 
"  intersection  of  the  14l8t  degree  of  west  longitude  (of  the 
"  same  meridian) ;  and,  finally,  from  the  said  point  of  intersec- 
tion, the  said  meridian  lino  of  the  14l8t  degree,  in  its  pro- 
"  longation  as  far  as  the  ^frozen  ocean." 
*'  Article  IV.  With  reference  to  the  lino  of  demarcation 
laid  down  in  the  preceding  article,  it  is  understood— 


fVii': 


m 


■'f,':.-r^"i  I 


\\. 


■-ii'U.."i!F 


UV. 


¥ii 


20 

"  iBt.  That  tlio  isliuul  ciUod  Princo  of  Wulos  IbIiuicI  eliall 
"  belong  wholly  to  llussiiii. 

"  2d.  That  whenovor  tl»o  Bummit  of  the  mountains,  which 
"  cxtond  in  a  direction  parallel  to  the  coast  from  the  5Gth  du- 
"  groo  of  north  latitude  to  the  point  of  intersection  of  the 
"  141  St  degree  of  west  longitude  shall  provo.  to  be  at  the  di*- 
"  tance  of  more  than  ten  marine  leagues  frouj  the  ocean,  the 
"  limit  between  the  British  possessions  and  the  line  of  coaot 
"  whiiih  is  to  belong  to  Russia  as  above  mentioned  shall  bo 
"  formed  by  a  line  parallel  to  the  winding  of  the  coast,  uiid 
"  which  shall  never  exceed  the  distance  of  ten  marine  loaguoi 
"therefrom.".;:         .  ;     '  '!     /i^^n^  ii^: 


■.:i^)iiny 


It  is. to  the  above-moLtioned  coast,  therefore,  that  the  priv- 
ileges enumerated  in  the  seventh  section  apply,  co-wit :  begin- 
ning at  54°  40'  north  latitude  and  ending  at  the  lllst  degree 
of  west  longitude;  so  that,  whether  the  treaty  of  1825  reiuniiih 
in  force  or  not,  its  provisions  are  restricted  to  the  section  of 
coast  abovy  mentioned,  and  have  no  reference  to  any  other, 
and,  of  course,  bear  no  relation  to  the  general  question  as  tu 
the  jurisdiction  of  the  United  States  over  Behring  Sea. 

Fu.  ,herraore,  an  examination  of  this  treaty  will  disclose  tho 
fact,  .' ..c  tho  claim  of  Russian  donainion  westward  of  the 
14lBt  degree  of  west  longitude  was  not  referred  to  nor  ques- 
tioned. On  tho  eastern  coast  of  the  North  Pacific  ocean, 
Russia  relinquished  her  claim  to  that  section  between  the  5U[ 
parallel  and  54°  40'  north  latitude.  There  was  no  question  as 
to  Russia's  riglit  to  the  Alaska  peninsula  or  the  Aleutian 
islands  south  of  54°  40'.  The  convention  deals  with  sul)jecli 
pertaining  to  tho  section  of  coast   I  have  mentioned,  and  to 

those  only.  ;,      '       ;  • 

.  By  the  5th  article  it  is  provided  that  neither  party  shall 
make  settlements  on  the  ci  ,3t  or  en  tho  border  of  tho  con- 
tinent within  the  territory  assigned  to  the  other,  by  the  bound- 
ary laid  down  in  articles  three  and  fou 

By  the  Gth  article  British  subjects  avc  ,  .itted  to  navigate 
the  rivers  and  streams,  which,  in  their  course  towards  tho 
Pacific  ocean,  may  cross  this  particular  section  of  the  <•  '"  <t ; 


■<-, 


V  ■' 


31 

and,  by  nrticlo  8,  tlio  port  of  Sitkft  is  opened  to  British  eom- 
iiicrco  for  the  space  of  ton  years,  and,  by  tl>o  section  we  lire 
cotiBidering,  the  privileges  it  omunerutos  nre  .restiieted  to  the 
kainu  locality,  and  there  is  nowhere  in  the  treaty  any  refer- 
cuco  to  any  locality  which  is  not  embraced  in  tiiis  line  of 
cou6t  between  the  5l8t  parallel  of  north  latitude  and  Mount 
St.  Elias. 

V. — Thb  Position  of  thb  Tukasury  Department.   , 

On  page  124'of .  the  pamphlet  there  isnhel  following  state- 
ment:, •■••'''      ■''^'■'V<?'r%<;#J^^^^  ■■  ■.vw*^  '  '-■  ,■• 

'*  The  following  correspondence  shows  the  position  assumed 
"  in  1872  by  the  Treasury  Department  in  relation  to  tlic  ox- 
'•  tent  of  jurisdiction  of  the  United  States  in  Alaskan  waters." 

Upon  a  careful  reading  of  this  correspondence  it  will  bo 
plainly  manifest,  that  both  the  inquiry  and  the  answer  bore 
reference,  not  to  the  territorial  waters  of  the  United  States, 
but  to  the  high  seas  beyond  our  southern  boundary  as  tixed  by 

^3^'  tlio  treaty  of  cession, ■<\.#)!'^l;jtijy^^r^!i^^:'i?^:>V^  -i/'v-,^''^-;.  „ 

The  route  of  the  fnr-soals  to*' their  homos  in  Alaska  trav- 
erses the  North  Pacific  ocean,  and  enters  Behring  Sea  through 
llic  channels  which  separate  the  Aleutian  Islands;  and  the 
suggestion  of  Collector  Phelps  raised  the  question  as  to  the 
right  of  the  United  States  to  intercept  marauding  expeditions 
from  Ilonolula  and  elsewhere  e7i  route  for  Ounimak  Pass,  and 
other  straits,  leading  from  the  North  Pacific  ocean  into  li^.h- 
ring  Sea;  and  it  was  to  that  question  that  the  attention  of  t\\K 
Secretary  was  invited,  for,  when  we  consider  that  the  extent  of 
our  own  territorial  jurisdiction  over  Alaska  and  its  waters  had  ' 
been  fixed  and  determined  by  specific  boundary  lines  hy  the 
treaty  of  purditisc  and  that  Congress  had  extended  the 
laws  of  the  UiiiU;  *  3  atoR  over  all  the  territory  included  within 
that  boundary,  >vy  {.m\M  scarcely  presume  that  an  executive  or 
administrative  officer  would  question,  or  his  ouperior  deny,  the 


■'lu!  "ii.\      '    V  t- 


:■  '.:  '■•?. 


"Kf 'T«-ri* 


L>v 


2? 


V  con- 


'4.^;V,.  .■.   '  if .    .       -  ... 


*i. 


riglit  of  ]m  govcnnncnt  to  exorciao  the  powor  oxprcss' 
ferrcd  by  net  of  Congrosa. 

The  question  pmsontoil  by  tlio  Phelps  letter,  therefore,  wft» 
not  whetlier  the  Soorotary  had  powor  to  employ  revenue  cut- 
ters to  protc  t  Boal  life  in  Behring  Sea — for  that  power  \vm 
undisputed,  and'up  to  the  present  day  no  officer  or  agent  of 
any  department  of  the  government  has  questioned  it ;  on  tlio 
other  hand  it  has  been  expressly  affirmed  by  the  Secretary  of 
the  Treasury,  as  1  will  presently  show.  • 
•  The  question  presented  to  Secretary  Boutwell  was.  whether 
or  not  the  Secretary  of  the  Treasury  could  send  revenue  cut- 
tors  to  Onniniak  Pass,  to  prevent  seal-killing  by  foreigners  and 
others  at  that  point,  and  at  the  narrow  straits  separating  cer- 
tain Aleutian  islands.  * 

The  fact  that  the  President  of  the  United  States  and  tlio 
Senate  had  doterniinQd  the  boundary  of  Alaska,  and  that  Con- 
gress had  extended  the  laws  of  the  United  States  over  saiij 
territory,  and  had  prohibited  ti»e  killing  of  fur-seals  "  within 
"  the  Territory  of  Alaska  or  the  waters  thereof  "  (except  by 
authorized  persons  on  the  Pribolov  islands),  loft  no  discretion 
as  to  the  right  and  duty  of  the  Secretary  to  protect  seal  life  in 
Alaska,  by  every  menns  and  at  all  times  ;  and  it  would  be  un- 
just to  assumo  that  Secretary  Boutwell  intended  to  defy  an  act 
of  Congress,  destroy  the  seal  rookeries  and  tiio  millions  of  rev- 
enue they  yield,  change  the  boundary  line  of  the  United 
States,  and  surrender  hundreds  of  miles  of  territory  fo.*  wiiicli 
Congress  h  id  appropriated  afid  expended  the  public  money. 

1  assume,  therefore,  that  neither  he  nor  CoUecto:  Phelps,  in 
this  correspondence,  had  any  reference  to  the  interior  of 
Alaska  or  its  waters,  so  fur  as  related  to  the  jurisdiction  of 
the  United  States.  The  object  of  Collector  Phelps  was  to  pro- 
vent  the  marauding  expeditions  from  killing  fur-seals  boforo 
they  entered  Behring  Sea,  viz.,  at  Ounimak  Pass, 

Secretary  Boutwell,  in  considering  that  8ul)ject,  replied  that 
he  had  learned  that  the  seals  did  not  approach  these  passes  in 
droves,  but  scattered  over  "  a  large  region  of  water ; "  ho  tlion 


:m 


■  V  *  "in 


^i.ji'U? 


ii^;i^';'}m^ 


:,•)  >*:f.'.'T*TtTrr, 


;,'j?5a;jj(vasJ'V.ifii*«gsBWE*?«y^^*^*^^*^"*-'' 


23 

adds  that  he  "does  not  seo  that  the  United  States  would  Imve 
he  jurisdiction  or  power  to  drive  off  parties  going  vp  there 
for  that  purpose,  unless  they  made  such  attempt  within  a  ma- 
"  rine  league  of  the  shore."  ) 

It  seems  clear,  therefore,  tlmt  all  that  Secretaty  Boutwell  in- 
tended to  decide,  and  all  that  he  did  dedide  was,  that  our  rev- 
oiuie  cutters  could  not  interceptor  drive  off  marauding  parties 
so  long  as  they  remained  in  the  North  Pacific  ocean,  outside 
of  the  three-mile  limit.  .  His  language  was:  "I  do  not  see 
^       hat  the  United  States  would  have  the  jurisdiction  or  power  to 
-    drive  off^arties  going  qp  there  %  (that  is,  parties  goin^r  up  to 
Ounimak  Pass  through  the  Nortii  Pacific  ocean),  for  that  pur- 

•«"f\he":^c:^'"'  ""'^""'  ^"^"^^  ^^^^'""  '^  "^"'•"-  ^-^- 

The  question  of  jurisdiction  within  the  treaty  boundary,  was 
no    presented  to  Secretary  Boutwell  by  Uiis  correspondence, 
and  was  not  decided.     But  later  on,  that  question  came  be- 
oro  the   Treasury  Department,  on  the  application  of  J).  A 
U  Ancona,  ot  San  Francisco,  California  in  1881 
In  reply,  dated  March  12,  1881,  the  Department  said  : 

"exSi^'rili:^"'-''^;"^^?'"'^"^  any  fu..' bearing  animals, 

4TaTa  !^^l,lr''''  V^"^"  provided,  within  the"  limits  of 

•Uhe  kniinrrZvT  ^'^«  rt«'\thereof,  and  also  prohibits 

"e  killing  of  any  fur-seals  on  the  islands  of  St.  Paul  and 

•«S;:ta^^^^^^^^^^^^  '''^  ^^'^''^  ^^^-"^  ^'--to,  except  during 

''You  inquire  in  regard   to  the  interpretation  of  the  te.-ms 
vate,,  thereof  and  '  waters  adjacent  thereto,'  as  used 
he  law,  and  how  far  the  jfirisdiction  of  the  Un  ted  S  ates   s 
to  be  understood  as  extending. 
_  "Presuming  your  inquiry  to  relate  more  especially  to  the 
waters  of  Western  Alaska,  you  are  informed    h a t    fe  n-elty 
w  th  R„88,a  of  March  30,  1867,  by  which  the  Terr^  ry  of 
Alaska  was  ceded  to  the  United  States,  defines  the  boundan 

«  It  will  bell   H  '   r°  '!  '''''\'''  "^  '^'^  ^«^^«^^^  Statutes. 
"  endH  W        '•  ^''^''*^^«''^  f'»"f  the  limit  of  the  cession  ex- 
tends from  a  line  starting  from  the  Arctic  ocean  and  rim- 


^:^v 


'm 


vvrrt,- 


^6 


.iifmw^  wum  ialip-,f.-irmr- 


Mh 


liiUlWi 


"imti 


M' 


2^ 

"  ning  through  Bchring's  Strait  to  the  north  of  St.  Lawrcnco 

"  isl'inds* 

"  The  line  runs  thence  in  a  southwesterly  direction,  so  as  to 
«  pass  midway  hetween  the  island  of  Attou  and  Copper  island 
"  of  the  Kormmandorski  couplet  or  group  in  the  North  J^^^ 
«  ocean  to  meridian  of  173  degrees  west  longitude.  All  tlio 
«  waters  within  that  bovmdary  to  the  western  end  of  the  Alcu- 
«  tian  Archipelago  and  chain  of  islands  are  considered  as  com- 
"  prised  within  the  waters  of  Alaska  Territory. 

"  All  the  penalties  prescribed  by  law  against  the  killing  ot 

"  fur 

«  tion.. 

Very  respectfully,   

•^  '«H.  F.  FRENCH, 

"  Acting  Sea'etanj." 


All  the  penalties  prcBcnuuu  uy  ia.»  «£«...««  ^..~  p  -- 

r-bearing  animals  would  therefore  attach  against  any  yiola-  - 
on  of  law  within  the  limits  before  de8cribed.;.^^p^r^;Jj/ 
«  Very  respectfnlly;^::.?^-;'^',^^:^"^^^-'-''^^:;:^::"^^;^ 


m 


On  the  IGth  day  of  March,  188C,  the  following  comn:  inica- 
tion  was  addressed  to  the  collector  of  customs  at  San  Francisco: 

"  Tkeasuby  DEPAKTMiiNT,  Mcivc/c  16,  1886. 
"  CoLLEOTOB  OF  Customs, 

"  San  Francisco.  ,    ' 
"  Sir  :  I  transmit  herewith  for  your  information  a  «opy  ot 
"  a  letter  addressed  by  the  Department  on  IVLirch  12, 1881, 
"  to  D    A    D'Ancona,  concerning    the   junsdictmn    ot   the 
"  United  States  in  the  waters  of  the  Territory  of  Alaska  and 
"  the  prevention  of  the  killing  of  fur-seals  and  other  tur-beann{: 
"  uuinials  within  such  areas,  as  prescribed  by  chapter  3,  title 
^'  23  of  the  Revised  Statutes.     The  attention  «?  your  Pi;edeccs- 
«  sor  in  otlice  was  called  to  this  subject  on  April  4, 1881.   1  lua 
«  couinmnicution  is  addressed  to  yon,  inasmuch  as  it  is  under. 
"  stood  tiuit  certain  parties  at  your  port  contemplate  the  httmg 
«  out  of  expeditions  to  kill  fur-ecals  in  those  waters.     J«"  J^''" 
<«  requested  to  give  duo  publicity  to  such  letters  in  oi^er   hut 
«  such  parties  may  be  informed  of  the  construction  placed  by 
«  this  Department  upon  the  provision  of  law  referred  to. 

"  Kebpectfully  yours,  ^',^r^TrK,r^ 

^  "  D.  MANNING, 

.  "  SecreiaryP 

While  the  above  decisions  of  tiie  Treasury  Department  arc 
not  referred  to  in  the  "  l\x\>^i-i  relating  to  Bohriug  Sea  Fidl»- 


25 

cries,"  oompilcd  by  tlio  Stato  Department,  I  deem  it  proper  to 
cito  thorn  in  support  of  my  (jonstniction  of  tlio  Bontwell- 
IMielps  corrospoudenco ;  for  if  Acting-Secretary  Fi-encli  and 
Secretary  Manning  had  construed  the  Boutwelj  letter  as  a  de- 
cision adverse  to  the  claim  of  -the  United  States  to  exclusive 
dominion  over  Behring  Sea,  it  is  not  to  be  supposed  that  they 
would  reverse  that  decision  without  referring  to  it. 
Since   writing   the   foregoing   my   views  in   reference   to 


"Washington,  i>.  C^Janudi'v  16,'  1888. 
"  lion.  Geo.  S.  Boutwell, 

"  Washington,  D.  0. 
"  Sir:  In  a  pamphlet  i-ecently  issued  by  tlie  Department  of 
"  State,  entitled  '  Papers  relating  to  Behring  Sea  Fisheries,'  ap- 
"  pears  a  letter  from  the  Collector  of  Customs  of  San  Francisco, 
*'  Mr.  Fhclps,  and  a  reply  thereto  by  yourself,  while  Secretary  of 
"  tlie  Treasury  in  1872.     I  am  advised  that  your  letter  is  relied 
"  on  by  the  Dominion  government,  and  quoted  in  its  brief  as 
"  a  decision  of  the  Treasury  Department  adverse  to  the  claim 
"  of  exclusive  jurisdiction  of  the  United  States  over  Behring 
"  Sea,  and  a  note  in  the  pamphlet  of  the  Department  of  Stato, 
•'  indicates  that  Mr.  Bayard  is  inclined  to  the  same  view." 
^^  "  As  a  citizen  of  Now  England  and  on  behalf  of  friends  resi- 
le dent'  there  who  ht  ve  large  interests  dependent  on  a  proper 
''  settlement  of  the  various  questions  relating  to  theteeal  Hslicries, 
I'  may  I  ask  you  at  your  early  convenience  to  express  to  me  in 
"  writing  your  understanding  of  the  proper  mcanini?  to  be  at- 
"  tached  to  that  letter. 

"  Bespectf ully  yours, 

"  W.  W.EATON." 


•        "•  Washington,  January  18,  1888. 

"  Sir  :  Since  the  receipt  of  your  letter  of  tlie  ICth  instant  I 

have  examined  with  care  the  letter  addressed  to  me  as  Secrc- 

•'  tary  of  the  Treasury  by  T.  G.  Phelps,  Esquire,  tlien  Ccilector 

w  *?*  ^"^^^™»  »t  the  port  of  San  Francisco,  dated  M-.rch  25, 

^^  1872,  and  also  my  official  reply  thereto,  dated  April  lU,  1872, 

in  relation  to  the  purpose  of  certain  parties  to  capture  fur- 


"'  llfUlilll— iiiii  w.     I  .1      II 


-TWfgiHiiiiiii 


';'>* 


(( 


26  ■ 

"  seal  on  their  annual  migration  to  the  islanfia  of  St.  Paul  and  St. 
"  George  through  the  Onnimak  Paes  and  through  the  neighbor. 
"  ing  approachea  to  the  islands.  •  Upon  the  examination  of 
"  the  correspondence  my  rocollectioh  is  in  a  degree  refreshed 
"  and  my  l<nowledge  of  the  circumstances  revived. 

"  Tlie  fourth  sentence  of  Mr.  Phelps'  letter  appears  to  pro- 
"  coed  upon  the  idea  that  it  was  the  purpose  of  tijc  hunters,  as 
"  tlicir  purpose  was  then  nndorstood  by  him,  to  take  the  seals 
"  upon  the  Pacific  ocean  side  of  the  Aleutian  range  of  islands 
"  and  near  the  passes  mentioned  and  through  which  the  animals 
"  were  destined  to  move;  and  such  was  the  yie'w  taken  by  mo 
"  and  on  which  my  reply  was  based.      '■'■ 

'*  Nor  can  I  now  see  that  there  is  ground  for  any  other  reason- 
"  able  construction  of  the  correspondence. 

"  Mr.  Phelps  appears  to  have  apprehended  a  diversion  of  the 
"  seals  from  the  Ounimak  Pass  and  the  naf row  straits  near  that 
pass,  and  his  suggestion  of  a  remedy  was  limited  to  the  same 
field.  Therefore,  neither  upon  my  recollection  of  facts  as 
they  were  understood  by  mo  in  1872,  nor  upon  the  present 
reading  of  the  correspondence,  do  I  admit  the  claim  of  Great 
"  Britain  that  my  letter  is  an  admission  of  any  right  adverse  to 
"  the  claims  of  the  United  States  in  the  waters  known  as 
"  Bohring's  Sf^a.  My  letter  liad  reference  solely  to  the  waters  of 
"  the  Pacific  ocean  *^sonth  of  the  Aleutian  Islands. 
*'  Very  rospcctfuliy, 

"  GEOliGE  S.  BOUTWELL. 

"  To  the  Honorable  W.  W.  Eaton, 

''Washmyion,JJ.  C' 

VI. — Tub  Yukon  Eiver. 
On  page  127  of  the  pamphlet,  the  following  is  stated  : 

"  It  is  to  be  observed  that  under  article  si.x  of  the  conven- 
*'  tion  of  1825,  between  Great  Britain  and  Russia  {supra,  p. 
"  04:),  British  subjects  have  the  right  of  access  to,  and  free 
'*  waviyjation  of,  the  Yukon  river." 

On  this  question  the  following  is  quoted  from  Mr.  Sumnor'fl 
spcecli,  in  the  Seaate,  April  9,  1867. 

The  sixth  article  of  the  treaty  referred  to  is  as  follows:      • 


'■"'„''; 


';-i*!";v>i^5.-'«^-j^<-«?'?4 


iflfcr^JiSWSU?  - 


27 

« It  is  understood  that  the  subjects  of  His  Britannic  Majesty, 
"  from  whatever  quarter  they  may  arrive,  whether  from  the 
"  ocean  or  from  the  interior  of  the  .continent,  shall  forever 
"  enjoy  the  right  of  navigating  freely,  and  without  any  hind- 
"  ranee  whatever,  all  the  rivers  and  streams  wjiiich,  in  their 
"  course  towards  the  Pacific  ocean,  may  cross  the  line  of 
"  demarcation  upon  the  line  of  coast  described  in  article  throe 
"  of  the  present  convention." 


K 


I  have  already  had  occasion  to  point  out  "  the  line  of  coast 
<f  described  in  article  three."  ^.  Beginning  p.t  54°  40'  on  the 
border  of  the  continent,  it  extends  to  and  ends  at  its  intersec- 
tion with  the  14:1st  degree  of  west  longitude,  a  few  miles 
directly  south  of  Mount  St.  Elias. 

The  Yukon  river  does  not  "cross  the  line  of  demarcation 
."  upon  this  *  lino  of  coast ; ' "  it  has  its  source  in  the  British 
possessions  north  of  British  Columbia,  and  north  of  the  Pacific 
ocean,  and  proceeds  in  a  northerly  direction,  towi^rds  the 
Arctic  ocean,  until  it  roaches  Fort  Seliiirk,  in  latitude  63°, 
tlionce  nortiivvosterly,  to  Fort  Yukon,  at  the  Arctic  circle  ; 
from  tliere  it  bears  in  a  southwesterly  direction  and  empties 
into  Norton  Sound,  an  estuary  of  Bohring  Sea,  and  thence  into 
tiie  Arctic  ocean. 

It  crosses  the  *'  iine  of  demarcation"  at  Fort  Reliance,  nearly 
five  degrees  north  of  the  Pacific  ocean,  in  a  course  that  would 
strike  the  Arctic  ocean  at  152**  west  longitude.  Instead  of 
crossing  the  boundary  "  upon  the  lino  of  coast  described  in 
"  article  three,  it  pursues  an  entirely  different  direction,  and 
'•crosses  '  the  line  of  demarcation,'  the  boundary  line  dividing 
"  tlio  main  land,  at  a  point  nearly  midway  between  the  Pacific 
"  and  Frozen  oceans."  Therefore,  not  being  a  river  or  stream, 
which  in  its  course  towards  the  Pacific'  ocean  crosses  the  line 
of  denuircation  upon  the  lino  of  coast  described  in  article  three 
of  the  treaty  of  1825,  the  Yukon  river  is  not  open  to  fiee 
navigation  by  British  subjects. 

The  remarks  of  Mr.  iS'nmnor,  cited  in  the  pamphlet,  do  not 
,  controvert  this  conclusion. 


r-A-}W\^^ 


111 

-I! 


28 
Conclusion. 

1    The  treaty  of   1824,  between  Russia  and   the  UnitcJ 
1.   iho  tieary  .  between  GiciU 

disputed  possession  and  juv.sd.et  on  to^gnvnt.oi. 

t„o'pnvileges  eoneeded  ^^ ^^T^o<^.^  -•<>  ''^  »-""• 
2.  Tluvt  the  grants  made  '^f  "«'»^, '',';" ''„n.,  t,,„  doctrine, 
.trued  strictly  against  tl,e  «'■-'-'' "°  £  ^^gu  ted  are  re 
that  all  rights  and  privileges  not  .pec.lical.y  gu 

,,i,,3d  by  f "  =™';»';'^^^f„„    ,„i,„,it  that  the  correspondence, 
In  conclnsioii,  1  icspeuinujf  Uopartmonl, 

»  papers  and  extracts,"  con.pded    'yj'"  ^'^°^^  .^^^.^ 
.„;,„in  to  the  fullest  extent  the  r,g  t  of  ''^^^l\^.,^,  , 

i,.  the  United  States  "-'^ '"-;;';  ;f/L"1:\,,et  court  tor 
the  Treasury  Department,  and  by  "«  ".  °  ^^^  ^    ,|,o 

„.,t  Territory-extending  westward  to  «"=  ™  '^,..  ^,  ^ 

l,Uions  (see  P'""!'''  "  •  P;  f  "j^  '     „,,,  t„  „„i..te  "  the  great 

,U  the  territory  described  rn  the  ""PT' J^'^lt  secti^in  of 
.      ,i„ht  was  tacitly  conceded,  sp.vnig  only  as  to^  tne 

Jast  on  the  north  PaclHc  ''o;--';;^  fb  lo„"d   o  each  of 

The  right  to  -»--g'''V    .  tat  "B  Ssea"  was  not 

the  powers  by  the  law  of  nations ,  but  ,,Behnng  ^^^^ 

,„d  never  l.s  been  "cmnmonlyeaM^ 

is,  and  always  f ron,  the  tnne  of  rts ''  «<-°™y  '     ^^^„a 

Ubntified  and  regarded  as  a  separate  body  of  wa  " , 

and  .vs  individual  as  the  Mediterranean  or  the  Baltic. 


29 


it  is  laid  down  in  all  tlie  maps  and  charts  ;  in  shipping:  arti- 
cles, and  the  instructions  to  naval  commanders  and  ofKcers  of 
llic  revenue  and  merchant  marine,  and  can  no  more  he  re- 
^Mirdcd  in  a  proper  or  legal  sense  as  the  Paciiicj  pcean   than  is 
the  Gulf  of  Mexico  to  be  considered  the  Atlantic  ocean. 
In  closing  this  communication  I  beg  to  Biibmit  that,  if  it  bo 
panic,  as  I  maintain  it  is  true,  that  the  protest,  negotiation  aiid  .   .  y&  .> 
^^  treaties  relate  to  the  section  of  the  coast  of  the  North  Pacific  J  i;|§s0i^; 
ocean  east  of  the  14l8t  degree  of  west  longitude,  it  must  be'  :       ;'  :- 
equally  true  that  tlie  entire  territory,  both  land  and  water,  west 
of  that  meridian  remains  precisely  in  respect  to  title  and  do- 
minion as  though  there  had  been  no  protest,  negotiation^  or 
treaty,  saving  oidy,that  by  the  transfer  of  Alasiai,  the  United 
States  acquired  Russia's  title  to  that  portion   of  tlie   Russian 
possessions.     So  that,  in  18G7,  Russia's  dominion  as  proclaimed 
ill  the  Ukase  of  1821  over  all  the  region  now  in  question,  was 
sbsoluto  and  undisputed.         •   r 

Respectfully  submitted. 

N.  L.  JEFFRIES. 

Note.— In  reference  to  the  destruction  of  seal  life  in  Alas- 
kan waters  by  English  subjects  and  otliera,  I  horowilh  submit  an 
extract  from  the  Report  of  Thomas  Monat,  Inspector  of  Fislx- 
oiiea  for  British  Colui  bia  for  the  year  1887  (Sessional  Tapers, 
vohl5,  No.  16,  p.  08):  ■      .  . 

"  There  were  killed  this  year,  so  far,  from  40,000  to  50,000 
« fur-seals,  which  have  been  taken  by  schooners  from  San 
«  Francisco  and  Victoria.  The  greater  number  wore  killed  in 
*'  Beliring  Sea,  and  were  nearly  all  cows  or  female  seals.  This 
"  enormous  catchj  with  the  inci-ease  which  will  take  place  when 
"other  vessels,  fitting  up  every  year,  are  ready,  will,  I  am 
«  afraid,  soon  deplete  our  fur-seal  fishery,  and  it  is  a  gi-eat  pity 
« that  such  a  valuable  industry  could  not  in  some  way  be  pro- 
jected."    ♦     *     ♦ 

■  \  '  ■  \   ^      ■ 


'■^^^Xr-Si't'-i 


Mi'lcL 


El.,  f..v<i-.-  ■ 


v%w«l«lll«»»(|i«*t*«1»««M»«Wl«'»«W'.^-<*»"  ■■*-«>■««»■,' 


^-'^•^I'^lxti^fri^.') 


i  t> :  I  4-.  -*, ',  1 


riy-::-.*. 


'H''f^'- 


r^^i';¥ 


:jp1*''.'<jyr,«<A, 


i^^'%^0i^^-}''<'M\^nm:m 


S^ii' 


.'t^.; 


^;'.5:;W;i'':^t';,;:i« ^% .i.':'  ■;«■  ./*^v>^ 


^»';i;.5S' .•.«.«■> '^^'^ 


•''  t  vV4  •*  ill 


A'<, 


>^?v> 


VA 


"  f., 


j-ftf 


Mf  J  •■ 


.y,.-.,a- 


!.":. -V' 


■:fi: 


Mv^'r ' 


sj- 


'.^>;' 


*:>•■; 


■e  i 


.i,.:..."WV^'N:;v»>-!«~-' 


.nmM^aaiuiemiatimi 


,•      Washington,  D.  C,  February  22,  1888. 

Tho  Honorable  Tuos.  F.  Bayabd,  '    '  . 

■    Secretary  of  State. 

Sir  :  In  the  event  that  the  English  or  Dominion  government 
should  attempt  to  justify  the  invasion  of  Behring  Sea  by  Eng- 
lish or  Canadian  seal  hnnters,  in  violation  of  the  laws  of  the 
United  States  and  the  regulations  of  the  Treasury  Depart- 
ment, by  virtue  of  the  privileges  stipulated  in  tho  first  article 
of  the  treaty  of  1825,  between  England  and  Russia,  I  beg  to 
submit  tho  following  for  your  consideration  : 


If' 


The  contention  between  England  and  Russia  and  between 
the  United  States  and  Russia  had  rofoi'ence  to  that  section  of 
tlie  Nortli  Pacific  coast  situate  botw,oon  parallel  51**  N.  lati- 
tude and  tho  14lst  meridian,  iff, '.v,,  . 

On  the  51st  parallel  the  ocean,  according  to  Mr.  Adams,  is 
foiu'  thousand  miles  wide,  and  tiio  claim  of  7/ucre  chiuaum 
was  for  that  reason  repelled  by  Mr.  Adams.  Tiio  right  of 
trading  on  tliat  coast  was  claimed  by  tho  United  States  and 
Enghvnd  and  denied  by  Russia,  and  to  settle  this  contention 
WQs  the  object  of  tho  conventions  of  1824  and  1825. 

Russia's  jurisdiction  as  far  soutli  as  the  55th  parallel,  how- 
ever, was  concede;!,  and  her  title  to  the  chain  of  Aleutian 
ialanda  was  not  then  and  never  has  been  questioned,  notwith- 
standing the  fact  that  this  chain  of  islands  is  situated  far 
•outh  of  the  55th  parallel,     .riii-  . 

There  had  been  no  conflict  or  controversy  in  reference  to 
tny  part  of  the  Russian  possessions  west  of  tlie  141st  tneridian ; 
and  in  the  treaties  pf  1824  and  1825  iljore  is  no  reference  to 
tny  portion  of  the  territory  claimed  by  Russia,  west  of  said 
meridian  or  nortli  of  Mount  St.  Elias ;  so  that,  after  these 
trotttios  had  been  ratified  and  the  contention  adjusted,  tho  juris- 


.^ 


W^ 


■*:*■  ■  ,' 


'I  vMmi  )Ki-.»^WII*:'« 


diction  of  Russia  over  Bohring  Sea,  Us  islands  und  coasts  o„ 
ttTcoutinonts,  remained  nndispnted  and  nnqnest.oned. 
In  th    i^^  a  tielo  of  tl>e  treaty  of  1825,  between  EngUnJ 

'"  ^X^ltiaSX  tS :  to  ...at  was  jntendea  ;. 
the  pln-ase  "  any  part  of  the  ocean  -■"--^  t  ;  -  fe     d 

s:tira:^t::t:i::iW'of «;  fouowmg  articioswiucmn.. 

"IrETgulnnbiocts  are  permitted  to  navi  ;ate  said  water, 
t;:  KnIlisUsnWe.s™ay  «s,>^^^^^^^^^  ,„ 

Zd.  Thoy  .nay  land  at  »ncU  P^'V";  .  ,,  j,,„  „„,ivoi. 

already  l.,.ve  been  ^^^^:;;:^^:X^L  wi.i.o..t 
ThcBO  a.-o  the  privileges  couleiiea  »y  '  i 

..oference  to  tho  "  <-"<''«7/"'*/t  itv    alr^  votoi-ro-l, 

and  limit  tlieir  exercise,  and  to  which  t  have  al.ea  y 

and  l^oretoforefnlly  discussed.  __^^.^^_  ^,__^^  „,^^ 

Xing  in  mind  t^t  U  was  legally^c^^^^^^^^^^^^  ^^^ 
by  virtue  of  the  facts  ot  -^-77?  '^^;;  j.":Hhhold  .he- 
pnted  possession  and  l--^-^'  *°^f  ^  :;„st„,ed  strio.W 
'privileges,  a.ul   th,it  "'«  f  f '  ,f  '"  j'ttH^e  that  .lU  rijil... 

^inst  the  ^^'-:i^'^tl  .■ot.a..cd  i.y  ..« 

and  privileges  not  spcLinumjr  ^  ,.    ,  >,  .  ' 

grantors. 


r 


8 


Ist.  At'  to  tho  privilege  of  Navigation.  It  will  not  be 
cluinicd  thftt  tlic  right  to  navigate  Bchrliig  Sea  included  tho 
riglit  to  kill  far-seal,  or  to  engage  in  tishing  for  the  latter  is 
cxclncied  from  tho  right  of  navigation  by  speoitically  granting 
the  right  to  fsh  as  a  separate  and  distinct  privilege. 
-  2d.  The  right  oi  Fuhmg.  -i= .'  u,  ,  .  ..• 
.  Tiiis  elanso  of  the  stipulation  conoedod  to  Bi'itish  Bubjects 
tho  right  to  engage  in  fishing,  but  did  not  confei  the  riglit  to 
take  fur- bearing  animals  cither  in  the  water,  on  tho  islands,  or 
on  the  coast. 

A  fur  seal  is  not  a  fish,  and  capturing  or  killing  fur-seals  is 
not  fishing ;  and,  therefore,  tho  privilege  of  fishing  would  not 
include  the  right  to  take  fur-seal,  and,  conceding  for  tho  sake 
of  argument  the  riglit  of  British  subjects  to  navigate  and  fish 
iu  Beiiring  Sea  by  virtue  of  the  article  f  am  considering,  there 
is  no  authority,  expressed  or  implied,  to  take  fur-seal. 

When  tliis  treaty  article  was  framed,  there  were  millions  of 
fur-seals  whose  homes  wore  the  seal  rookeries  of  Behrins  Sea. 
Uoru  on  Russian  soil  and  protected  by  the  iiussian  govern- 
ment, they  were  regarded  as  Russian  property,  and  the  right 
to  take  fur-seals  for  their  skins  was,  by  the  Government,  con- 
forrod  upon  tho  Russian-American  Company  on  the  payment 
of  a  royalty  into  the  Imperial  treasury. 

All  other  seal  rookeries  of  the  world  had  been  destroyed  by 
Indiscriminate  slaughter,  until  Russia,  by  a  wise  foresio-ht. 
adopted  measures  for  the  protection  and  preservation  of  those 
iiiiuials,  not  only  on  the  islands  but  in  the  waters  of  Behring  Sea. 

Now  it  will  not  be  presumed,  that  under  a  stipulation  per- 
mitting British  subjects  to  fish  in  Behring  Sea,  that  it  was  in- 
tended that  British  subjects  were  to  be  permitted  to  destroy 
•oal  life  in  Behring  Sea  which  Russia  was  endeavoring  to  pro- 
lervo,  and  for  which  purpose  sho  had  placed  at  the  disposal  of 
Uio  Russian  American  Company  her  array  and  navy  "  to  pro- 
"  tcct  them  with  all  their  power  from  loss  or  injury,  and  to 
•*  render  them,  upon  application  of  the  Company's  authorities, 
"  all  necessary  aid,  assistance,  and  protection  "  (see  charter 
Doc.  27,  1799,  last  section). 


'1    I 


■ 

1 

M 

,          1 

ii 

I 

|i(| 

.     1  ■ 

1  r 

n. 

B«.  I  do  not  «d,„it  that  the  privilege*  -'f  ""f  ^VaJe,!':! 

J.U  of  the  English  t-'^J^J'^tt    8  »  Is  "      m 
i»  I    •      G«o      Tf  it  bo  RBSorted  tluU  Deuuuo  wjuc*  r 

monly  called  the  Pac.he  ocoaa,    and  it  is  only  to  v 

that  ocean  that  the  privileges  are  extended  ^_ 

,,   The  langnageof  f'^''?  "LI"^*''   >.••■.'■.•'-•■  • 

i^^^s^fei  j# '^ '--"'^  "»"t !::  S  n^^^nte^^^^^^^ 

|f»*?«   mai'i'N*"."  ««"'""  to  me,  that  It  u.w    ^  ,^^j^ 

have  been  omitted.  Pacific  ocean 

Tf  the  priviloL'CR  were  to  be  exorcised  m  tuo  i  at. 

it  tlie  puvi  Lb  commonly  called  tlio 

and  not  restricted  to  such  pa  ts  as  a 

^  ,„ggest  thein^W^.    nd  ^»^  1^^^  th^  privileges  «^,t^be  ^. 
fc  to  restrict  the,  limits,  wii  ^  ^       <»mmortiy  callal   , 

■;:  exercised,  to  such  parts  of  the  »';«"^^«?'  ,,„i^^  ;„  „„y  of 

the  Pacific  ocean,  therehy  •»  " '''''""f  *"" 'J  „f  that  ocean, 
the  waters  which  might  he  claunod  ^"  ^^  " J^'^^^.^^  „„„„, 

„„,ess  such  water,  wc.    ---"1^-,    would  have  no  a. 

'^''''r"";d::\rtth       cU       honndaryof  the  Pacific 
euvate  knowl  dge  «.  to    ho  ^^  ^^^^^_,  ^_^^,_       ,,, 

ocean  in  relation  to  <-'>"™';""=    „„,,  Behrins  Sea;  b«t  there 
yellow  Sea,  the  Sea  of  OUhotWan^^^^^^^^ 

could  be  "7''«7f '  fS^ocoan,  Svithin  the  limits  o 
,       i„  eommonly  ea  led  *>  »  ~.°,^^  ^^re  to  he  exercised, 
which,  and  not  beyond,  these  P''™;?       j^^s^,,  „  li,uiiation, 
,    Surely  .hero  was  some  '•<>-«"  l^;;^;*;;,  ,„«„  onnttod. 

<"•  '";  ^""'STre:  y  ::  dontbalnied  that,  there  were 


'  f'  .1  '  'i  i 


V.J  "    .  .       '         i  '   ■ 


^;»;^?^^9^ 


>itll<ui»i"F'i-.*i-<   >■■ 


otliers  tluit  woro  not  so  ciillod,  wators  which  wore  connoctod 
with  that  ucoan,  and  which  might,  or  might  not,  bo  a  part  of 
it,  hut  which  wero  commonly  called  by  a  different  name.  If 
tiiia  were  not  so,  for  what  purpose  were  the  words  "  commonly 
'•  called,"  used  at  all?     ■»  '  > 

Take,  for  example,  the  Yellow  Sea,  the  Sea  of  Japan,  the 
Sea  of  Okhotsk,  and  Behring  Sea,  all  those  connect  with  the 
Pacific  ocean,  and  whether  or  not  thoy  are  parts  of  that  ocean, 
they  are  not  commonly  called  the  Pacitio  ocean,  but  are 
"  called  "  by  their  own  proper  nun\es,  and  are  mapped  and  laid  , 
down  in  the  charts  as;  separate!  aAd.  distinct  bodies  of  water 
under  their  individual  naniee/-^^>?i^}Vii<'V)7-       - 

It  is  true  that  tlie  phrase  "  any  part  of  the  ocean  "  is  used, 
but  at  the  same  timo  this  phraseology  limits  it  to  "  some  part " 
of  that  ocean,  and  not  only  that,  but  to  a  part  tliat  is  "  com- 
"  monlj  called  the  Pacilic  ocean,"  and  cannot  by  any  rule  of 
interpretation  extend  its  application  to  other  bodies  of  water, 
which,  by  common  acceptation,  have  a  distinct  individuality, 
characteristics,  and  designation  of  their  own. 

That  the  words  "  commonly  called  "  were  used  for  a  purpose 
is  apparent  from  the  fact  that  they  al*e  adhered  to  and   ap- 
plied  by  its  framers  in  the  first  article  of  the  treaty  of  1824      -glloti;^;;; 
between   Russia  and    the.  United   States.     In  tiiat  case   the  ''7';'-'      "'^ 
phraseology  is  :  **  In  any  part  of  the  great  ocean,  connnonly 
*'  culled  the  Pacific  ocean,  or  Soiith  sea."     Is  it  not,  therefore, 
evident  that  in  both  instances  the  words  were  used  to  limit  the 
exercise  of  the  privileges  to  wiiat  was   by  general  acceptation 
rogurded  as  the   Pacific  ocean  proper,  and  about  whicli  there 
was  no  question  or  doubt  as  to  whether  it  was  the  Pacific 
ocean,  or  something  else  ?,•;^^^lt#:*r^;r■       .. 
;frt;It  is  worthy  of  notice  that  the  phrase  "  commonly  called 
^v*1'ithe  Pacific  ocean,"  was  suggested  by  Russia  (and  accepted      ip'v 
by  the  United  States)  in  the  Projet  submitted  by  Count  Nessol- 
rodo,  dated  March  22,  at  the  formation  of  the  treaty  of  182i,  and 
for  reasons  that  are  now  clearly  apparent. 

In  defining  the  western  boundary  of  the  coded  tci  ^  itory  by  the       .   ^ 
treaty  of  1867  between,  the   United  States  and  Russia,  it  is 


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6 

Btated :  "  tho  lino  proceeds  in  n  (sourso  nearly  BOuthwoBt,  thromjk 
"  Belii-inj,'  Sti-uits  and  liehnng  Sea;'  «  •  •  '*  bo  as  to  pass 
"  midway  liotwcon  tho  islands  of  Attou  and  the  Copper  island 
"  of  tho  Korinandorski  couplet,  or  group,  2/1  the  North  Pacific 

*'  oceuny 

From  this  it  is  plain  tluit  Russia  in  1807  distinguished 
Bchring  Sea  from  tho  Pacitie  ocean,  just  as  she  had  by  tlio 
treaty  of  1825 'restricted  the  privileges  of  English  subjects 
to  tho  waters  f*  commonly  called/V-  tliQ .Pacific  ocean,, or  the 
Pacific  ocean  propeiv.ji:',i:Myfr^<t^>iJSHj/tj^pv^ 

Tills  distinction  was  recognized  by  the!'  United  States— they 
being  a  party  to  said  treaty— and  the  declaration  that  tho 
boundary  line  "  passes  through  Bohring  Sea  into  the  North 
«<  rsicltic  o(!oan  "  is  the  declaration  of  Russia  and  the  United 
States.  How  is  that  declaration  to  bi  construed  if,  in  a  treaty 
sense,  B(  'iring  Sea  is  tlie  Pacific  ocean  ;  and  if  Behring  Sea 
is  a  mytli,  what  iuis  l)ecomo  of  our  western  boundary  ? 

I  understand  tliat  in  tlie  claim  of  tlie  British  and  Dominion 
governments  it  is  alleged  that  their  vobsoIb  were  seized  by  our 
revenue  cutters- not  in  the  Pacific  ocean  but  in  Behring 
<Sea— more  than  three  miles  from  the  shore,  and  that  the  same 
was  set  up  as  a  defence  in  tho  United  States  district  court  at 

Sitka.  '  ,     T>      • 

In  1709,  the  Emperor  of  Russia  conferred  upon  the  Russian- 
American  Company  the  exclusive  right  and  control  of  Ins 
Russian- American  possessions  for  a  period  of  twenty  years; 
at  its  expiration  it  was  renewed  for  a  like  period.  For  tins 
privilege  a  royalty  was.  paid  by  said  Company  to  tho  Russum 
government,  which,  in  return,  guaranteed  to  tlio  Company 
complete  protection.  Foreign  traders  and  navigators  were  ex- 
eluded  ^vom  the  Russian  dominions  by  imperial  decrees. 

Tho  jurisdiction  of  the  Company  originally  extended  to  tho 
55tl»  parallel  of  north  latitude  on  the  coast  of  North  America 
and  to  latitude  45"  50'  on  the  continent  of  Asia. 

In  1821,  on  tlio  application  of  the  Company  and  for  its 
better  protection  aguinst  foreign  traders, 'tlie  Emperor  Alex- 
ander issued  tho  famous  Ukase  with  which  we  are  all  familiar 


m- 


11 


and  in  which,  in  addition  to  prescribing  the  penalties  for  its 
violation  by  foreign  traders  and  navigators,  he  extended  tlio 
jurisdiction  of  S-msia  to  the  parallel  of  SI"  north  latitude. 
Then  followed  the  treaties  of  1824  and  1825.' 

An  examination  of  those  treaties  and  the  I  correspondence 
which  preceded  them— -l he  correspondence  bet.veen  Hussia 
and  the  United  States  with  reference  to  the  renewal  of  the 
4th  article  of  the  American  treaty— the  facts  in  the  case  of 


privileges  and  concessions  as  Russia  chose  to  confer  by  the  ^•■" 
treaties  of  1824  and  1825,  will  disclose  the  fidelity  with  which 
Russia  protected  her  rights  and  the  charttred  privileges  of  the 
Russian- American  Company  in  hei-  Russian-American  posses- 
sions.    And  when  we  reflect  that  the  contentions  and  the 
treaties  which  adjusted  them  had  reference  to  a  comparatively 
small  section  of  the  North  Pacific  coast,  and  consider  how 
fo-  vigorously  the  Russian  government  asserted  and  maintained 
its  rights  and  tlio  rights  of  the"  Company  it  had  agi  =ed  to  pro-  . 
tect,  and  that  the  privileges  conferred  by  the  treaties,  with  a 
few  unimportant  exceptions,  expired  in  the  space  of  ten  years, 
it  would  require  more  than  a  strained  implication,  or  a  forced 
construction  of  a  treaty  clause,  to  establish  the  fact  that  Rus- 
sia, regardless  of  her  fur-seal  interest  and  the  rights  of  the 
Company  she  was  pledged  to  protect,  had  opened  the  waters, 
islands,  and  "coasts  of  Behring  Sea  on   both  the   Asiatic  and 
American  continent  .to  foreign   navigators  and  traders,  with 
full  permission  to  navigate  the   waters,  to  engage  in  fishing, 
and   to  land  at  such  parts  of  the  coast  as  had  not  already 
been  occupied  in  order  to  trade  with  the  natives. 
Respectfully  submitted. 

<  >:  '  :  xT.  L.  JEFFRIES. 


! 


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